Skylink: The Meaning of "access", and Other Ways to Lose...

UPDATE #2: Apparently, the recent ruling in the Lexmark case involves "access" issues. Ed Felten has a nice write-up on his blog.

To my knowledge, the term "access" isn't defined in the US Copyright Code... This is a problem.

The only reasonable definition I can come up with is that "access" must mean the rendering of a protected work into a form that can be directly perceived by the end-user. This definition would still allow technology like CSS to be considered a "protection measure" under the DMCA, and yet prevent DMCA abuses a la Lexmark.

It could also affect the copyright landscape with respect to computer software (executable code, not human-readable source code). Oh well, you can't win them all...

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UPDATE #1: Ernest Miller has a posting on Corante.com about the Blizzard v. BNETD case that resonates with this. Here's what he wrote. From the brief excerpts in Ernest's, it looks like the Judge in that case doesn't understand "access" either.

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Chamberlain argued in it's DMCA case against Skylink that their "rolling-code" system was a "technical measure that effectively controlled access" to the software in their garage door opener. They also claimed that the software in their GDO was protected by copyright, and they provided the copyright registration to prove it.

The issue of whether or not the copyright was valid was never reached by this case because the court was able to rule against the plaintiff purely on the authorization issue. Skylink never challeged the copyright either, so the following issues were never raised:

1. Chamberlain customers have never had "access" to the GDO software, and
   
2. Functional aspects of computer software are not protected by Copyright

The true meaning of "access":

In every other instance of a "protected work" that I can think of, the act of "accessing" a protected work involves rendering the work into a form that can be directly perceived by the consumer. You have to be able to "hear" the music, or "see" the book.

The Chamberlain GDO software is never rendered in any form we can perceive, so exactly how have we "accessed" it? It's true that we see the garage door open and close, but that's merely a functional result of the softwares' activity and not a direct observation of the activity itself.

Chamberlain customers never had "access" to the GDO software, so the argument that the "rolling codes" qualify as a "technical measure" under the DMCA would (IANAL!) fail, prima facia.

Abstraction, Filtration, Comparison:

Another way for Chamberlain to lose, even assuming the Court didn't buy my "access" argument, would be throught the AFC test. The AFC test was originally developed during Computer Associates v. Altai and, more recently, is being tossed back and forth in the SCO v. IBM case. This case, and others, set the stage for the following principle:

The functional aspects of computer software are not protected by Copyright.

In order for this to work, Skylink would have to challenge the idea that Chamberlains' "rolling codes" actually accesses anything that merits Copyright protection.

Conclusion:

Chamberlains' case against Skylink fails on so many levels it's hard to keep track of them all... Chamberlain lost on the issue of authorized access, but I'm confident they would have also lost because they misunderstand what "access" really means, and because they forgot (or ignored) that functional aspects of computer software are not protected by Copyright. Functional aspects of computer software are protected by Patent Law.

Don't worry. I have no interest in talking about software patents here...

Skylink: Copying vs. Authorized Access

Skylink Declares "Rip, Mix, Burn" Legal.
"Rip, Mix, Share" Still Has Problems...

On a Personal Note

I have to ask myself sometimes, why am I spending hours and hours dissecting a legal document when my skills lie in a completely different area (physics and computers). It's because I'm outraged. Outraged at what I believe to be major abuses of Copyright. The idea of using Copyright to prevent researchers from publishing, inventing, or coding is just wrong. It's built up to the point that I have to do something so, among other things, I'm doing this blog.

You don't get to be a good physicist or a good computer scientist without being curious about how things work. If you don't know how it works, it bugs you. Sometimes it bugs you so much that you have to take it apart to see how it works. Once you know how it works, you might see ways to make those pieces do something new, or how to build it better.

Now imagine someone telling you that you're not allowed to understand how it works, and if you did understand it, then you're not allowed to talk about it, or you're not allowed to build it on your own. What they're trying to do is control what you can think about, what ideas you can share with your peers, what papers you can publish... If there's any way to seriously offend a researcher or academic, just try to tell them that they can't publish a paper. That's happened to several researchers already. I just can't see how preventing research, publications, and inventions is going to "promote the progress of science and the useful arts."

Background

The Chamberlain Group (Chamberlain) makes a line of garage door openers. Skylink Technologies makes, among other things, "universal" remotes for garage door openers. If your Chamberlain remote breaks, or you lose it, you can buy one from Skylink and use it to open your garage.

Chamberlain, of course, doesn't like this. They'd rather you buy a new remote from them. Wouldn't it be great for Chamberlain if there was some way to establish a monopoly on aftermarket spare parts?

Well, that's exactly what the Chamberlain tried to do when it sued Skylink under the DMCA for selling garage door openers that bypass the security features they built into their product. Specifically, they sued under section 1201(a)(2) of the DMCA. That's the part that says you can't sell devices that bypass (circumvent) technical measures that "effectively control access to a work".

Just for reference, here is what that section of the DMCA says:

17 U.S.C. § 1201 Circumvention of copyright protection systems (DMCA)

1. Violations regarding circumvention of technological measures.
   1. (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title...
   2. No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that
      1. is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
      2. has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
      3. is marketed by that person or another acting in concert with that person with that person s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
   3. As used in this subsection -
      1. to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
      2. a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

I'm very happy to see that Chamberlain lost. What I'm really excited about with this case is that I think the legal framework developed in Skylink can be use to limit or reverse the rather unsatisfactory outcomes (IMHO) of other Copyright cases like Universal v. Corley.

Just to get things going, here's a partial quotation from the closing remarks of the case:

The DMCA does not create a new property right for copyright owners. Nor, for that matter, does it divest the public of the property rights that the Copyright Act has long granted to the public. The anticircumvention and anti-trafficking provisions of the DMCA create new grounds of liability. A copyright owner seeking to impose liability on an accused circumventor must demonstrate a reasonable relationship between the circumvention at issue and a use relating to a property right for which the Copyright Act permits the copyright owner to withhold authorization as well as notice that authorization was withheld. A copyright owner seeking to impose liability on an accused trafficker must demonstrate that the trafficker s device enables either copyright infringement or a prohibited circumvention.

The Skylink Test

Anyone claiming a violation of § 1201(a)(2) must be able to prove the following things:

1. ownership of a valid copyright on a work,
2. effectively controlled by a technological measure, which has been circumvented,
3. that third parties can now access
4. without authorization, in a manner that
5. infringes or facilitates infringing a right protected by the Copyright Act.
   

The above five points are quoted directly from the ruling (pg. 42, although I have changed the emphasis slightly), and makes it explicitly clear that you must prove ALL five elements for your claim to succeed. Chamberlains' claim failed on the last two points, that's why they lost the appeal.

Consequences

The closing remarks make it perfectly clear that an alleged cirumvention has to be tied to a use of the work that the copyright holder is allowed to withhold. In the Skylink case, Chamberlain argued that because they had implemented a technical measure, the DMCA gave them the power to prevent its customers from using their own garage openers.

The Court of Appeals didn't agree, however, and said that Chamberlains' interpretation of the DMCA "borders on the irrational." Honest, I didn't make that up, it's right there on page 36. The ruling goes even further... ( I have paraphrased a bit, see pg. 43)

The Copyright Act authorizes consumers to access the copy of a protected work that they purchased. If the copy has been obtained legitimately, then consumers are immune from circumvention liability under§ 1201(a)(1).

In other words, it isn't circumvention if your copy of the protected work is legitimate. The District Court found, and the Appeals Court concurred, that an unconditional sale implies authorization. If you've got a legitimate copy of a protected work then Copyright law grants you unconditional access rights, and that also means that you are automatically authorized to bypass any technical measures that prevents access.

The only possible fly in the ointment is this little gotcha in the footnote on pg. 40:

It is not clear whether a consumer who circumvents a technological measure controlling access to a copyrighted work in a manner that enables uses permitted under the Copyright Act but prohibited by contract can be subject to liability under the DMCA.

Closing Remarks:

As far as I'm concerned, it boils down to this: As long as it's your music, or your dvd, you can rip, mix, and burn all you want as long as you don't violate the five points of the Skylink test.

It may be possible to prohibit this with a contract, but I don't think this is going to apply to the DVDs and CDs that you purchase down at Walmart. If someone tries to tell you, for instance, that you can't use DeCSS to play a DVD on your Linux computer, try asking them this question:

What legal agreement, contract, or Federal statute allows a copyright holder to restrict how a consumer can access a protected work that they have obtained legitimately?

I think the only correct answer to this question is that there isn't one.

That's all for now.

References:

1. [PDF] Chamberlain Group, Inc. v. Skylink Technologies, Inc.

Work Interferes with Blogging, News at 11:00

To anyone who's reading this, I want you to know that this blog isn't dead. Work has kept me extremely busy over the past week and my blogging productivity has suffered as a result... Go figure.

Now that I'm actually starting to climb out of that black-hole, I just wanted to say that my next posting will be about the latest DMCA court case Chamberlain v. Skylink. You can find a lot of background material on the Electronic Frontier Foundation site, and there's some incredibly well-written articles over at Corante.com. In particular, you might want to read the following:

1. Jason Schultz's Copyfight article on the Skylink decision,
2. Derek Slater's article on the decision, and
   
3. Ernest Miller's collection of articles:

• Landmark Federal Circuit Decision in Skylink Case Creates DMCA Balancing Test
• Commentaries on the Federal Circuit's Skylink Decision, and
• Chamberlain v. Skylink in the Court of Public Opinion

I don't intend to rehash the same issues that have already been covered so well by people who write better than I do. I would rather stay focused on the issue I raised in my last article about copying... This is a long ruling and it may be a few days before I'm ready to post again. I should definitely have something posted by Sep. 27th (2004!) if not sooner. Don't expect anything before Sep. 23rd.

p.s. For you physicists out there, I'm not going to tell you how to get out of a black hole. My patent application isn't finished yet, and I want to get it published before Stephen Hawking figures it out.

Copyright vs. The Laws of Physics

Copyright is concerned with protecting the rights of the authors of creative works. I'll expand on this later, but it's really about

1. Attribution (who wrote it),
2. Duplication (copying),
   
3. Distribution (publishing), and
4. Derivative Works.

The digital era, through the DMCA and "friends", has introduced a fifth element to the discussion:

5. Authorized Access.

The issue of who had authorized access to a protected work really didn't begin until we started having Satellite TV. This is where the problems began. Companies like DirecTV may be bombarding every house in the country with their satellite signals, but the only people who are supposed to watch them are the customers who have paid-up subscriptions.

Early Satellite TV systems were analog, and customers didn't have the equipment to copy and redistribute the DirecTV signal they were receiving. The biggest problem for Satellite TV, both then and now, is unauthorized reception.

Now that everything is digital, the problem for copyright holders has gotten much much worse. Every person with an Internet connection is a potential publisher.

Going Digital, and Failing to Cope...

What I think the copyright industry has failed to realize is that, when you are dealing with a digital work, the rights of authorized access and the rights of duplication (copying) are completely inseperable. They are welded together so tightly that you can't have one without the other. The reason most people don't realize this is because they don't understand how a CD or DVD player really works. They don't understand the physical principles behind it all...

This is why the DMCA and all the other attempts to color copying as evil are so fundamentally flawed. They are ignoring basic fundamental principles of physics! By my own estimates, just watching a DVD involves making five (yes, 5) distinct copies. Here they are:

1. The DVD player copies data from the disc using a laser.
2. There's a chip that unscrambles the encrypted data (DeCSS) and, yes, this involves making a copy.
   
3. The unscrambled data gets sent to a processor.
4. The processor sends data to a graphics chip
5. The graphics chip sends it to a display, where you see it.

Each of these steps involves copying, but because it all happens inside a little black-box, nobody sees what's really going on...

Because of this lack of understanding, organizations like the MPAA and the RIAA have failed to cope with this in an intelligent way and, more importantly, the Courts have not recognized it either. Even the latest Skylink decision assumes that authorized access can be separated from copying.

My Rights as a Consumer

If I go down to the video store and buy a copy of SpiderMan II on DVD, I think everyone would agree that I am authorized to watch the movie. I own the right to watch this movie, and my right to watch this movie does not expire. This right is perpetual.

Furthermore, I think every reasonable person would agree that whoever receives this DVD from me also has the right to watch the movie as well. I think I am perfectly within my rights to give it away as a Christmas gift, sell it to a used CD store, or let my kids inherit it after I die... My right to watch this movie is transferable (ref: Doctrine of First Sale).

Getting to the Point

If I go up to Jack Valenti or Dan Glickman and ask them if I have the right to copy this DVD, they'll say no. I can show them the receipt and they'll still say no. If they really want to insist that I don't have any right to make a copy, even after I explain the physics of the situation to them, then I really ought to ask them for my money back.

Now that I think about it, this could explain why I don't have a DVD player at home and have never owned a single DVD. Ever. It could also be that I'm just cheap. But maybe, just maybe, it's because my inner physicist is subconciously offended by any business model that is in conflict with the fundamental laws of the universe...